Attorneys say the same principles that apply to U.S. soldiers cover war workers

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RICHMOND, Virginia — The same principles that protect U.S. soldiers from being sued by enemy combatants apply to private contractors hired to help conduct a war, attorneys for two companies that provided interrogators at the Abu Ghraib prison in Iraq told a federal appeals court Tuesday.

Attorneys for Virginia-based CACI International Inc. and New York-based L-3 Communications Corp. urged a three-judge panel of the 4th U.S. Circuit Court of Appeals to reverse rulings by two lower courts denying them immunity from lawsuits by alleged torture victims at Abu Ghraib.

A lawyer for Iraqi detainees argued that even in a war context, private companies can be sued for actions not authorized by their contracts with the government — in this case, the abuse of prisoners.

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"They are asking for something that neither Congress nor the military has given them — absolute immunity," said attorney Susan L. Burke, who represents four former detainees in the CACI lawsuit and 72 in the lawsuit against L-3, formerly Titan Corp.

The lawsuits allege that the contractors conspired with others to torture Abu Ghraib detainees in 2003 and 2004. Photos of detainee abuse at the prison shocked Americans when they became public in 2004. Several military personnel have been convicted and sentenced for their roles in the abuse.

Attorneys for the contractors said the same civil immunity that applies to the government covers their clients because they were performing a government function at Abu Ghraib. They also said it is well established that the conduct of a war is the province of the political branches, not the judiciary.

"No power under the Constitution is more marked for judicial deference than national defense," said CACI's attorney, J. William Koegel Jr..

However, Burke suggested that even a U.S. soldier who abuses a foreign counterpart can be sued in an American court if the U.S. attorney general fails to intervene — a notion the court clearly had a tough time swallowing.

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"I thought it was pretty much a slam-dunk that foreign soldiers can't sue U.S. soldiers," said Judge Paul V. Niemeyer. He acknowledged, though, that "this case is more complex than soldier versus soldier."

Koegel and Ari S. Zymelman, attorney for L-3, both told the court that their strongest argument is that their clients are covered by "law of war immunity" — a principle established in case law that bars damage claims arising out of the prosecution of a public war. They further argued that the contractors cannot be sued for "combatant activities."

Burke countered that the contractors exceeded the boundaries of protected activities.

"Physical brutality is outside the scope of interrogation," she said. "The U.S. did not hire CACI to go over there and beat the heck out of people."

The court typically takes several weeks to issue a ruling.

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